| Vt. | Feb 15, 1837
The opinion of the court was delivered by
This action is, on the face of the declaration, trespass on the freehold. It alleges that the defendant broke and entered the plaintiff’s close, &c.; and seeks to recover compensation for the injury. It is very clear that the plaintiff may recover for the injury to the freehold, and, if so, then the justice cannot try the whole cause, if he cannot take cognizance of that injury. And as the amount claimed exceeds the jurisdiction of the justice in such cases, it follows that he has no jurisdiction of the case. The matter here alleged, by way of aggravation, might have been alleged, substantially, as a personal tres
^ _ A new assignment might, indeed, avoid such a defence, as in Hubbel v. Wheeler, reported in Aikens. That was trespass upon the freehold, alleging, by way of aggravation, the seduction of the plaintiff’s daughter. The plea was not guilty, with notice of a justification of the trespass, under a license to enter the house. The court held, that proof of a license to enter the house would defeat the action, were it not that the plaintiff might new-assign, abandoning the trespass on the freehold, and charging the seduction, as a substantive trespass, and had the same rights, under the notice, which he would have under a new assignment, had the justification been specially pleaded. But in this case the difficulty is, that, upon the face of the declaration, the justice had no jurisdiction, the action being trespass on the freehold, and the sum demanded being over twenty dollars. This want of jurisdiction can not be helped by plea to the action, or any after proceeding ; because, the declaration shewing a case not within the jurisdiction of the court, it can not proceed at all.
If we consider this declaration as counting upon several trespasses, still the difficulty is not removed. If the court had no jurisdiction of the trespass upon the freehold, it does not help the jurisdiction to join a count in trespass, de bonis asportatis. We cannot distinguish between the damages claimed for one or the other.
Finally, ii we sustain this action, we virtually repeal the limitation in the act giving the justice jurisdiction ; for the party has only to include in his declaration something which might lay the foundation of an action of trespass to personal property, and, upon the plaintiff’s doctrine, the justice would have general jurisdiction of the trespass upon the freehold.
Judgment of the county court reversed, and the action dismissed, with costs.